Information Technology Reference
In-Depth Information
more than this however. The provisions can further elaborate how disputes will be
settled, limit damages and reallocate risk among the parties. First, all of the four cloud
providers disclaim various warranties regarding the availability of their respective
service and any harm a user might suffer from loss of service. Worse, three of the
services (all but Dropbox) require the user to indemnify the provider for any harm
suffered due to conduct of the user. For example if a user stored infringing content a
copyright owner could sue the user but could also sue the service provider under a
theory of contributory copyright infringement. Indemnifications have serious legal
consequences. If a provider were found liable for contributory copyright
infringement the user would be obligated to cover the loss (damages) suffered by the
service provider; this is the power of an indemnification.
The TOS may also limit the form of remedy the user may pursue. Amazon Cloud
Drive requires the parties to use arbitration, with users forced to waive their right to
participate in a class action suit against the provider. This can be a significant
deterrent for individual users seeking redress. In addition, so-called boilerplate
provisions can be problematic. Such provisions are common to many contracts.
Choice of law and choice of forum are two examples. A user seeking judicial remedy
would be forced to litigate in the home state of the service provider and use the law of
that state. A non-waiver provision is another boilerplate provision and allows the
service provider discretion in deciding against which users it will enforce the TOS. A
non-waiver provision requires that a waiver of an enforcement right of the service
provider must be in writing; it cannot be based on conduct alone, i.e., non-
enforcement against another user.
3.1
Termination and Suspension Rights of the Service Provider
In cloud computing environments termination provisions are also very important.
While it is not uncommon for the contractual relationship to end at some point one
consideration is whether adequate notice is provided if the service provider intends to
terminate the user's access from his or her cloud and whether suspension of services
is also possible. All of the TOS reviewed restrict in some way the content a user can
post, store, distribute to other users, etc. These restrictions are typically broad. While
some restrictions forbid content that is unlawful such as obscene material or
defamatory content other prohibitions restrict content that is perfectly lawful in the
United States such as hate speech. Some categories of restricted content are without
legal meaning or are undefined in the TOS such as “otherwise objectionable” content.
This results in problems interpreting the provision. What iCloud may deem
“otherwise objectionable” may not be to a particular user. Dropbox is the least
restrictive forbidding only content that is infringing (of copyright) or harmful to the
system (“spyware or any other malicious software”). If a user violates the content
prohibition the cloud provider can terminate the user. iCloud: can terminate for “(a)
violations of this Agreement or any other policies or guidelines that are referenced
herein and/or posted on the Service.” OpenDrive also has a similar prerogative:
“OpenDrive, in its sole discretion, may terminate your password, account or use of
the Service and remove and discard any Data within the Service if you fail to comply
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